The 25 Best Friends of Property Rights

February 1, 2005

By Chip Mellor

We would like to thank the diverse array Kelo v. New London. Each brief, in its own way, helps to underscore the tragic consequences and dire implications of eminent domain abuse. The following are just a few highlights to provide a glimpse of the outstanding contributions made by all of the briefs.

Jane Jacobs, grand dame of new urbanism and author of The Death and Life of Great American Cities, submitted a brief that stated, “The costs of development takings are disproportionately inflicted on poor and minority communities, because these groups are disadvantaged in the political process, especially relative to the powerful corporate and private interests that benefit from economic development condemnations.” Jacobs underscored to the Court her argument in Death and Life that the replacement of diverse neighborhoods with counterfeit development projects “destroys neighborhoods where constructive and improving communities exist and where the situation calls for encouragement rather than destruction.” She added, “people who get marked with the planners’ hex signs are pushed about, expropriated, and uprooted much as if they were the subjects of a conquering power. Thousands upon thousands of small businesses are destroyed. . . . Whole communities are torn apart and sown to the winds with a reaping of cynicism, resentment and despair that must be seen to be believed.”

The National Association for the Advancement of Colored People (the nation’s oldest civil rights organization), AARP (the nonpartisan group whose 35 million members address the needs and interests of older Americans) and the Southern Christian Leadership Conference (founded by Dr. Martin Luther King, Jr.) joined with other organizations to roundly criticize the practice of eminent domain abuse that they demonstrate “has and will continue to fall disproportionately upon racial and ethnic minorities, the elderly, and the economically disadvantaged.”

University of Chicago Law School professor Richard Epstein, one of the nation’s leading property scholars, co-authored a brief on behalf of the Cato Institute. Among other points, Epstein criticized flimsy justifications given by legislators and developers for eminent domain use. Epstein points out that “governments can simply gin up pro forma findings that some benefits are expected from the project in question. Indeed, that’s exactly what happened in this case.”

The American Farm Bureau and the Farm Bureau Federations of 18 states and one county warned the Court that “[j]udicial review of whether property is being taken for public use must be real review” because “deference to legislative decision-making that is so abject as to accept at face value whatever justification a municipality puts forth is no judicial review at all. It is the antithesis.” Too often, the Farm Bureau warned, eminent domain is not used for a truly “public use” but instead for “speculative real estate ventures.”

The Becket Fund for Religious Liberty reminded the Court in its brief that if “economic development”—the creation of jobs and taxes—can be a justification for taking private property by the government, then religious institutions will be put at great risk. The Becket brief stated, “Religious institutions will always be targets for eminent domain actions under a scheme that disfavors non-profit, tax-exempt property owners and replaces them with for-profit, tax-generating businesses. Such a result is particularly ironic, because religious institutions are generally exempted from taxes precisely because they are deemed to be ‘beneficial and stabilizing influences in community life.’” The brief states that affirming the Connecticut Supreme Court’s decision that permitted the taking would “declare open season on the taking of religious institutions of all faiths and functions.”

Former mayor of Milwaukee and current President of the Congress for New Urbanism John Norquist also filed a brief in favor of the homeowners. As a former public official, Norquist assured the Court that “prohibiting the exercise of eminent domain for purely economic development purposes will not prevent redevelopment, given the array of other incentives available to government authorities interested in stimulating economic development.”

More than a dozen prominent law professors who teach and write on property and land use issues asked the Court to apply a greater level of judicial scrutiny in deciding eminent domain cases for private development purposes. The brief, authored by Notre Dame Law School associate professor Nicole Garnett and William S. Richardson School of Law professor David Callies, warned that “under current federal standards, courts could approve virtually every exercise of eminent domain.”

The National Association of Home Builders, whose 215,000 members constructed more than 1.77 million new housing units in 2004, and the National Association of Realtors, with more than one million members, recognized in their brief “that housing will almost never afford a community with the economic development benefits that a commercial application will. If economic development as a sole justification for public use is decided using a rational basis test with deference to local legislative bodies, then the door is left open for local governments to abuse their eminent domain powers.”

All of the amicus briefs are available on our website, including the great work by old friends like Pacific Legal Foundation, Reason Foundation, Claremont Institute Center for Constitutional Jurisprudence, New England Legal Foundation, Mountain States Legal Foundation, the Property Rights Foundation and a host of state think tanks.

On behalf of the property owners of New London and across the nation, we say a heartfelt thanks to all who so tirelessly came to their aid at this crucial time.

Chip Mellor is IJ’s president and general counsel.

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